Citation NR: 9704585
Decision Date: 02/14/97 Archive Date: 02/19/97
DOCKET NO. 95-08 764 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Providence,
Rhode Island
THE ISSUE
Entitlement to increased rating for the residuals of
rheumatic heart disease, status post aortic valve
replacement, evaluated at 30 percent disabling.
REPRESENTATION
Appellant Represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Neil T. Werner, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1959 to May
1960.
In a rating decision in July 1960 the RO granted service
connection for the residuals of rheumatic heart disease and
assigned a 10 percent compensable disability evaluation.
In a rating decision in August 1976, the RO granted the
veteran's request for an increased rating for the service
connected residuals of rheumatic heart disease and assigned a
30 percent compensable disability evaluation.
This appeal arises from an October 1994 rating decision that
denied the veteran’s September 1992 request for an increased
compensable rating for the residuals of his service connected
rheumatic heart disease in excess of 30 percent.
REMAND
Review of the claims file shows that the veteran contends, in
essence, that the residuals of his service connected
rheumatic heart disease have worsened over time and warrant
an increase in his compensable disability evaluation.
The RO issued a statement of the case in February 1995.
Later in February 1995 the veteran submitted additional VA
outpatient treatment records to the RO. These records
reflect his treatment for the residuals of his service
connected rheumatic heart disease from January 1993 through
February 1995 and were submitted in support of his claim.
The RO issued a rating decision in March 1995 that addressed
another issue. No action was taken to consider the
additional evidence. The veteran’s claims file is devoid of
any evidence that the RO issued a supplemental statement of
the case after the March 1995 rating decision.
38 C.F.R. § 19.31 (1996) provides in relevant part that:
A Supplemental Statement of the Case, so
identified, will be furnished to the
appellant and his or her representative,
if any, when additional pertinent
evidence is received after a Statement of
the Case or the most recent Supplemental
Statement of the Case has been issued,
when a material defect in the Statement
of the Case or a prior Supplemental
Statement of the Case is discovered, or
when, for any other reason, the Statement
of the Case or a prior Supplemental
Statement of the Case is inadequate.
The Board of Veterans’ Appeals finds that the VA records
submitted by the veteran were “additional pertinent evidence”
as envisioned by 38 C.F.R. § 19.31 (1996). Therefore, the RO
was obligated under 38 C.F.R. § 19.31 (1996), to issue a
supplemental statement of the case and appellate review of
this appeal cannot proceed without this document being
issued.
Additionally, the veteran, in his Appeal to the Board of
Veterans’ Appeals dated in March 1995, stated that after the
RO received the aforementioned VA outpatient records he would
then decide whether or not he wanted a personal hearing.
Therefore, before the veteran’s claim can be adjudicated, the
veteran must be contacted and asked if he desires a hearing
and, if so, the nature of the hearing he desires.
In light of the foregoing, and in order to fairly and fully
adjudicate the veteran’s claim as well as to ensure full
compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The veteran should be contacted and
asked to provide information regarding
the names, addresses and approximate
dates of treatment of all health care
providers who treated the residuals of
his rheumatic heart disease since 1960.
When the veteran responds and provides
any necessary authorizations, the named
health care providers should be contacted
and asked to submit copies of all medical
records documenting his treatment that
are not already in the claims folder.
2. The veteran should be contacted and
asked to clarify whether or not he
desires a hearing before the RO or the
Board of Veterans’ Appeals (Board) and,
if the latter, whether he wishes to
appear in Washington, DC, or before a
Traveling Member of the Board at the RO.
Depending upon his response, appropriate
steps should be taken.
3. Upon completion of the development of
the record requested by the Board, and
any other development deemed appropriate
by the RO including the scheduling of the
veteran for a VA cardiovascular
examination, if appropriate, the RO
should again consider the veteran’s
claim. If action taken remains adverse
to the veteran, he and his accredited
representative should be furnished a
supplemental statement of the case
concerning all evidence added to the
record since the last supplemental
statement of the case. The new
supplemental statement of the case, in
all events, should include all evidence
added to the record since February 1995
and the veteran and his representative
should be given an opportunity to
respond.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review. No action is required of the
veteran until he receives further notice. The purposes of
this remand are to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of the appeal.
N. R. ROBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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